FILED

United States Court of Appeals

Tenth Circuit

June 18, 2012

PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ARRIENNE MAE WINZLER, On

Behalf Of Herself And All Others
Similarly Situated,
Plaintiff - Appellant,
No. 10-4151

v.
TOYOTA MOTOR SALES U.S.A.,
INC.,
Defendant - Appellee.

Appeal from the United States District Court

for the District of Utah
(D.C. No. 1:10-CV-00003-TC)

Roy A. Katriel, The Katriel Law Firm, Washington, D.C. (James T. Blanch and
Erik A. Christiansen, Salt Lake City, Utah, with him on the briefs), for PlaintiffAppellant.
Michael L. Mallow, Loeb & Loeb LLP, Los Angeles, California (Laura A.
Wytsma, Darlene M. Cho, Rachel A. Rappaport of Loeb & Loeb LLP, Los
Angeles, California; David J. Williams of Stoel Rives LLP, Salt Lake City, Utah,
with him on the brief), for Defendant-Appellee.

Before TYMKOVICH, SEYMOUR, and GORSUCH, Circuit Judges.

GORSUCH, Circuit Judge.

Mootness has many moods. Always the doctrine describes a situation

where events in the world have so overtaken a lawsuit that deciding it involves
more energy than effect, a waste of effort on questions now more pedantic than
practical. In some cases mootness bears a constitutional countenance, acting as a
jurisdictional bar against even entertaining a case. Other times mootness carries a
more prudential complexion, permitting us to withhold relief we have the
authority to grant. Other times still, a case finds itself mooted by a tangle of
constitutional and prudential considerations. This case involves mootness in at
least its prudential sense. This because our plaintiff seeks equitable relief already
being provided by coordinate branches of government and she offers no reason
why the courts should duplicate those efforts.
At the beginning, this case had life enough. Arrienne Mae Winzler brought
state law claims against Toyota on behalf of a proposed nationwide class of 2006
Toyota Corolla and Toyota Corolla Matrix owners and lessees. She alleged that
the cars harbored defective Engine Control Modules (ECMs), making them
prone to stall without warning. As relief, she asked for an order requiring Toyota
to notify all relevant owners of the defect and then to create and coordinate an
equitable fund to pay for repairs.
But soon things began to turn. Before addressing whether Ms. Winzlers
class should be certified, the district court held her complaint failed to state a
claim and dismissed it under Fed. R. Civ. P. 12(b)(6). And then, just as Ms.
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Winzler began her appeal, Toyota announced a nationwide recall of 2005-2008

Toyota Corolla and Corolla Matrix cars to fix their ECMs. The ongoing recall is
taking place under the auspices of the National Traffic and Motor Vehicle Safety
Act (Safety Act or Act). That statute obliges Toyota to notify owners of the
defect and repair or replace any faulty parts at no cost. 49 U.S.C. 30118(c),
30120. And the whole process is overseen by the National Highway
Transportation Safety Administration (NHTSA), an agency of the Department
of Transportation that can issue stiff fines if the company fails to carry out the
recall to its satisfaction. Arguing that these statutory and regulatory processes
promise Ms. Winzler exactly the relief sought in her complaint, Toyota has asked
this court to find that events have overtaken her suit and rendered it moot.
Whether, when, and to what degree mootness can boast of being a
constitutional command, a true jurisdictional limit on the federal courts, has taxed
great minds. Compare Honig v. Doe, 484 U.S. 305, 329-32 (1988) (Rehnquist, J.,
concurring) (arguing mootness is exclusively prudential), with id. at 339-42
(Scalia, J., dissenting) (arguing mootness has a constitutional component); see
also Evan Tsen Lee, Deconstitutionalizing Justiciability: The Example of
Mootness, 105 Harv. L. Rev. 603 (1992). But of at least this much we can be
sure: claims for equitable relief, like the injunction Ms. Winzler seeks in this
lawsuit, appeal to the remedial discretion of the courts. S. Utah Wilderness
Alliance v. Smith, 110 F.3d 724, 727 (10th Cir. 1997). This remedial discretion
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necessarily includes the power to mould each decree to the necessities of the
particular case. Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944). And inhering in
that power is the concomitant power to deny relief altogether unless the moving
party [can] satisfy the court that relief is needed. United States v. W.T. Grant
Co., 345 U.S. 629, 633 (1953). After all, if events so overtake a lawsuit that the
anticipated benefits of a remedial decree no longer justify the trouble of deciding
the case on the merits, equity may demand not decision but dismissal. When it
does, we will hold the case prudentially moot. Even though a flicker of life
may be left in it, even though it may still qualify as an Article III case or
controversy, a case can reach the point where prolonging the litigation any
longer would itself be inequitable. See 13B Charles Alan Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice and Procedure 3533.1 at 725 (3d
ed. 2008); S-1 v. Spangler, 832 F.2d 294, 297 (4th Cir. 1987) (case prudentially
moot because the relief sought no longer has sufficient utility to justify decision
. . . on the merits).
Prudential mootness doctrine often makes its appearance in cases where a
plaintiff starts off with a vital complaint but then a coordinate branch of
government steps in to promise the relief she seeks. Sometimes the plaintiff will
seek an injunction against the enforcement of a regulation the relevant agency
later offers to withdraw on its own. Sometimes the plaintiff will seek an order
forcing a department to take an action that it eventually agrees to take voluntarily.
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However it comes about though, once the plaintiff has a remedial promise from a
coordinate branch in hand, we will generally decline to add the promise of a
judicial remedy to the heap. While deciding the lawsuit might once have had
practical importance, given the assurances of relief from some other department
of government it doesnt any longer. See, e.g., S. Utah, 110 F.3d at 727
(prudential doctrine has particular applicability . . . where the relief sought is an
injunction against the government); Bldg. & Constr. Dept v. Rockwell Intl
Corp., 7 F.3d 1487, 1492 (10th Cir. 1993); New Mexico ex rel. N.M. State
Highway Dept v. Goldschmidt, 629 F.2d 665, 669 (10th Cir. 1980); Chamber of
Commerce v. U.S. Dept of Energy, 627 F.2d 289, 291 (D.C. Cir. 1980) (In some
circumstances, a controversy, not actually moot, is so attenuated that
considerations of prudence and comity for coordinate branches of government
counsel the court to stay its hand).
To be sure, promises of reform or remedy arent often sufficient to render a
case moot as a constitutional matter. Thats because the risk always exists that,
as soon the court turns its back, the defendant might renounce his promise and
return to his old ways. W.T. Grant, 345 U.S. at 632; see also Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). But
even when the risk of recalcitrance is injury enough to keep the case alive as an
Article III matter, it isnt necessarily enough to avoid the application of
prudential mootness doctrine. Thats because any party invoking the equitable
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remedial powers of the federal courts must still satisfy the court that [requested]
relief is needed, and when it comes to assessing that question, a remedial
promise always qualifies as one of the factors to be considered. W.T. Grant,
345 U.S. at 632-33. Though a remedial promise may not be enough to kill a case
constitutionally, it can be enough to bring it to an end all the same as a matter of
equity.
The weight a remedial promise plays in the equitable calculus depends, of
course, on who is making the promise and the reliability of that partys past
promises. And it should come as no surprise that the remedial commitments of
the coordinate branches of the United States government bear special gravity.
S. Utah, 110 F.3d at 727; Rockwell Intl Corp., 7 F.3d at 1492; Chamber of
Commerce, 627 F.2d at 291. Neither do we take governmental promises seriously
only because they are generally trustworthy. We also take them seriously because
affording a judicial remedy on top of one already promised by a coordinate
branch risks needless inter-branch disputes over the execution of the remedial
process and the duplicative expenditure of finite public resources. It risks, too,
the entirely unwanted consequence of discouraging other branches from seeking
to resolve disputes pending in court.
Ms. Winzlers case contains all these traditional ingredients of a
prudentially moot case. To be sure, her suit isnt one against the government and
in that formal respect differs from many prudential mootness cases. But looking
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past form to substance, she has in hand a remedial commitment from our
coordinate branches all the same. By filing documents with NHTSA notifying it
of a defect, Toyota set into motion the great grinding gears of a statutorily
mandated and administratively overseen national recall process. See 49 U.S.C.
30118(c), 30120(a). By virtue of its filing, Toyota is now obliged by statute to
notify all relevant registered owners of the defect. See 49 U.S.C. 30118(c),
30119(d). The company has assumed as well the statutory duty to remedy the
defect or noncompliance without charge when the vehicle or equipment is
presented for remedy. 49 U.S.C. 30120(a). And Toyota has subjected itself to
the continuing oversight of (and potential penalties imposed by) NHTSA. 49
U.S.C. 30120(c)-(e), 30165(a); 49 C.F.R. 1.50(a).
Given all this, there remains not enough value left for the courts to add in
this case to warrant carrying on with the business of deciding its merits.
Congress and the Executive have committed to ensure Ms. Winzler precisely the
relief she seeks. At best, we might duplicate their efforts and waste finite public
resources in the process. At worst, we might invite inter-branch confusion and
turf battles over the details of carrying out an agreed objective. Our intervention
would, as well, surely add new transaction costs for Toyota and perhaps reduce
the incentive manufacturers have to initiate recalls (as Toyota did here), all while
offering not even a sliver of additional relief for Ms. Winzler and members of the
class she seeks to represent. Perhaps the lawyers would benefit if this would-be
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class action labored on through certification, summary judgment, and beyond.

But its hard to see how anyone else could.
Things might be different if we thought Ms. Winzler would be left without
complete relief. While we generally hold a case moot when a coordinate branch
steps in to resolve the problem, we dont do so without first accounting for the
possibility of failure. If the party seeking relief can show that there exists some
cognizable danger of recurrent violation, some cognizable danger that the
coordinate branch will fail and she will be left without a complete remedy, we
will continue with the case even in the face of a simultaneous remedial
commitment from another branch. See W.T. Grant, 345 U.S. at 633. After all,
while equity may not require us to duplicate efforts of the other branches it hardly
insists we run the risk of leaving a plaintiff without a remedy shes entitled to. In
seeking to avoid one set of wrongs (needless duplication and inter-branch
disputes) we cannot ignore the possibility of inviting what may be even a greater
one (leaving the plaintiff without a remedy in a meritorious case).
To carry the burden of showing a cognizable danger of failure, a plaintiff
must point us to something more than the mere possibility of failure. Id.; see
also SEC v. Steadman, 967 F.2d 636, 648 (D.C. Cir. 1992). This doesnt require
the plaintiff to prove an imminent or even a likely danger of failure. All she must
show is a cognizable danger one perceptible or recognizable from the
evidence before the court. See 3 Oxford English Dictionary 446 (2d ed. 1989)
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(defining cognizable as, among other things, capable of being known or

perceived, or apprehended by the senses or intellect, perceptible); see also
Mayorga-Vidal v. Holder, 675 F.3d 9, 14 (1st Cir. 2012) (defining legally
cognizable social group as one that is socially visible that is, generally
recognizable in the community). At the same time, of course, its not enough
merely to speculate about or imagine how our coordinate branches might fail. A
plaintiff must identify something more than the mere possibility of failure
sufficient to keep the case alive for Article III purposes. See W.T. Grant, 345
U.S. at 633; Nelson v. Miller, 570 F.3d 868, 882 (7th Cir. 2009).
Still, though this cognizable danger standard poses a relatively modest
hurdle, Ms. Winzlers three efforts to clear it clearly fall short.
First, she disputes what facts we, as an appellate court may know about the
status of the recall. To show that it rendered this case moot by triggering the
Safety Act after the district court entered judgment, Toyota has moved to
supplement the record with and asked us to take judicial notice of documents filed
with NHTSA and now available on the agencys public website. These materials
purport to show that Toyota is already well on its way to completing the recall
and that the phase of the recall covering Ms. Winzlers car is already complete.
For her part, Ms. Winzler cautions us against taking notice of the truthfulness of
Toyotas papers. She worries that Toyota may have misstated how many owners

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and dealers it has notified about the recall, how many and which cars it has fixed
so far, or otherwise misrepresented its progress.
All this, however, is beside the point. To find this case prudentially moot,
we do not have to (and do not) take notice of the truthfulness of Toyotas
statements. All that matters is that materials purporting to identify a defect and
to announce a recall are on file with NHTSA. This much is enough because, with
the act of notifying NHTSA of a defect and announcing a recall, Toyota set into
motion the statutorily mandated and administratively overseen national recall
process. Its filings with the agency obliged it to notify owners, fix their cars, and
do so for free, all pursuant to Congresss command and under NHTSAs
supervision. 49 U.S.C. 30118-20. So it is that, to find this case moot, we need
(and do) only take notice of the existence of filings with NHTSA purporting to
identify a defect and announce a recall.
Neither does anyone dispute we may take notice of this much. Fed. R.
Evid. 201 allows courts to take judicial notice of facts at any stage of the
proceeding if the facts are not subject to reasonable dispute. Everyone before
us agrees that Toyota has indeed filed the materials in question with NHTSA and
that the contents of those materials purport to show an ongoing recall. And it
comes as no surprise that the parties agree. The contents of an administrative
agencys publicly available files, after all, traditionally qualify for judicial notice,
even when the truthfulness of the documents on file is another matter. See In re
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Calder, 907 F.2d 953, 955 n.2 (10th Cir. 1990) (discussing judicial notice of the
existence and contents, but not truthfulness, of publicly filed documents); Tal v.
Hogan, 453 F.3d 1244, 1264 n.24 (10th Cir. 2006) (same). Neither is it open to
question that we may take judicial notice of materials on appeal, or that doing so
can wind up rendering a case moot, prudentially or otherwise, during its pendency
on appeal. The very same concerns animating prudential mootness doctrine that
counsel us to avoid deciding a case on its merits can also counsel us to avoid a
needless district court remand when a cases mootness is readily apparent. See
United States v. Burch, 169 F.3d 666, 671 (10th Cir. 1999) (judicial notice may
be taken for the first time on appeal); Jordan v. Sosa, 654 F.3d 1012, 1020 n.11
(10th Cir. 2011) (encouraging parties to alert this court to developments after a
district courts judgment that may render the case moot on appeal); Ali v.
Cangemi, 419 F.3d 722, 723-24 (8th Cir. 2005) (holding case prudentially moot
for the first time on appeal and vacating a district court determination on the
merits); Spangler, 832 F.2d at 298-99 (same); United States v. (Under Seal), 757
F.2d 600, 601, 604 (4th Cir. 1985) (same).
Second and separately, Ms. Winzler worries that the NHTSA recall process
may prove an insufficient remedy because it is a voluntary one. And in one
sense she has a point. Some recalls are initiated voluntarily when a
manufacturer alerts NHTSA to the defect. 49 U.S.C. 30118(c). Others are
initiated involuntarily when the government discovers a defect after its own
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investigation. 49 U.S.C. 30118(a). Toyotas recall here began pursuant to the

voluntary recall subsection. The difficulty for Ms. Winzler is that, whether the
recall ball gets rolling under the voluntary or involuntary recall subsection, the
result is the same: either way, the same notice, recall, and repair mandates
follow; either way, the same oversight and enforcement tools are in play. See 49
U.S.C. 30118(e), 30119, 30120, 30165; Ctr. for Auto Safety v. Natl Highway
Traffic Safety Admin., 452 F.3d 798, 802 (D.C. Cir. 2006). Far from suggesting
some danger of a recurrent violation as she hoped, Ms. Winzler only draws our
attention to the fact that voluntary recalls are no more susceptible to failure than
involuntary recalls required by the government.
Finally, and moving past how a recall is initiated, Ms. Winzler points to
what she perceives to be defects in the statutory recall processes that follow.
Should a manufacturer fail to carry out its notice, recall, and repair duties, she
acknowledges, NHTSA has discretion to conduct a hearing, investigate, and issue
sanctions. See 49 U.S.C. 30118(e), 30120(e), 30165; 49 C.F.R. 557.6. But
because NHTSA has so much discretion in how to carry out its enforcement
responsibilities, she worries she may not be able to take the agency to court if it
fails to pursue Toyota with (what she considers) sufficient vigor. See
Administrative Procedures Act, 5 U.S.C. 701(a)(2) (no judicial review when
agency action is committed to agency discretion by law); but see McAlpine v.
United States, 112 F.3d 1429, 1433 (10th Cir. 1997) (noting that this is a very
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narrow exception to the normal rule of judicial review). Ms. Winzler also worries
that if NHTSA falls down on the job, the Safety Act may not afford her a private
right of action to pursue Toyota, and notes that at least two other circuits have
already held the Act contains no private right of action. See Ayres v. General
Motors Corp., 234 F.3d 514, 522 (11th Cir. 2000); Handy v. General Motors
Corp., 518 F.2d 786, 788 (9th Cir. 1975) (per curiam). In contrast, she says, a
judicial decree would give her a firmer whip hand to ensure Toyota fulfills its
recall duties. Firmer because should Toyota falter she can be sure that a federal
judge will hear her complaint and penalize the company appropriately.
The limitations Ms. Winzler identifies in the statutory recall procedures
may well exist (we have no reason to decide today the APA judicial review
question or whether the Safety Act contains a private cause of action). But even
so they are insufficient to prove a cognizable danger that the statutory recall
process will fail. A plaintiff cannot show a cognizable danger of failure merely
by pointing out that the processes Congress and the Executive have chosen to
effect a remedy differ from those a judicial decree might provide to reach the
same result. After all, there are many ways to skin a cat and many ways to
provide an effective equitable remedy. In the context of a recall, reasonable
minds might well disagree about the ideal method of notice, the optimal and most
realistic timeline for repair, whether repair or replacement is required, where the
repairs should occur, and so on, but still wind up all the same with equally
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effective results. No doubt a recognition of this reality is one of the reasons

courts of appeals review challenges to the mechanisms of district court equitable
decrees simply for abuse of discretion. See In re Blinds to go Share Purchase
Litig., 443 F.3d 1, 8 (1st Cir. 2006) (a district court shaping an equitable remedy
. . . typically has a range of appropriate options. As long as the courts ultimate
choice falls within this range, it will withstand review even if it is not, in the
appellate courts opinion, the best option within the range.). And surely our
coordinate branches should enjoy no less (concerns for comity would suggest
even more) latitude than our district courts when it comes to selecting what they
believe to be the most appropriate path to their stated remedial objective.
To hold otherwise to allow a case to proceed simply because there
happen to be differences between the remedial process a coordinate branch has
selected and those we might choose would not only require us to ignore the
reality that theres often no one single right way to go about providing equitable
relief to an injured party. It would also require us to ignore the reality that there
are nearly always (if not always) some differences between Executive, Legislative
and Judicial remedial procedures given how differently the three branches
operate: by regulation, legislation, and decree. To presume deficiency from
difference would no doubt go a long way, as well, toward spelling the end of
prudential mootness doctrine and the comity it is supposed to afford our
coordinate branches. And doing so would involve not a little hubris, suggesting
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that our ways are always the best ways. After all, by asking us to proceed with
her case only because differences exist between the Acts remedial processes and
those that might be included in a judicial decree, Ms. Winzler necessarily asks us
to conclude that while Congress sought to provide consumers with an effectual
recall regime, the legislation it enacted is actually pretty ineffectual. She also
necessarily asks us to assume that while NHTSA is invested with considerable
authority to police Toyotas recall effort, it is likely to abdicate that duty.
Of course and again, if a plaintiff can show that the remedial mechanisms
selected by a coordinate branch arent just different but that those differences
present a cognizable, a perceptible, a recognizable danger they will lead our
coordinate branch to fail to achieve its stated objectives, we can and will proceed
with the case. But to justify the expenditure of judicial resources, all in
duplication of ongoing efforts by a coordinate branch and in a fashion that
necessarily evinces a judgment that those efforts are in some way defective, more
than a speculative risk of failure is required.
Yet that is all Ms. Winzler gives us. She doesnt dispute that if the Act
works as it is supposed to and NHTSA does its legislatively assigned job she will
achieve a complete remedy. She simply worries that the agency may fall down on
the job. And her worry is no more than that. It is backed by no evidence
suggesting it is anything other than a hypothetical possibility, a conjectural but
not cognizable danger. Though she represents to us that Toyotas recall began in
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August 2010, Aplt. Br. at 11, she offers no evidence that NHTSA has abdicated
its duties in the year and a half that has elapsed since then. She likewise offers us
no facts suggesting any perceptible chance the agency wont complete the work it
has started. In fact, she offers no evidence suggesting that the agency has ever
fallen down on the recall job before in a way that might make us concerned about
completing its work in this case: if such evidence exists, she has left us none the
wiser for it. See Nelson, 570 F.3d at 882.
Because prudential mootness is arguably the narrowest of the many bases
Toyota has suggested for dismissal, and because it is sufficient to that task, we
have no need to discuss any of Toyotas other arguments for the same result,
ranging from standing to Rule 12(b)(6). We grant the motion to supplement the
record and for judicial notice to the extent discussed above and, following our
general practice when finding a case moot (prudentially or otherwise) on appeal,
we vacate the district courts judgment and remand with instructions to dismiss
the case as moot. See Wyoming v. U.S. Dept of Interior, 587 F.3d 1245, 1254-55
(10th Cir. 2009).

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